Recent court rulings pertaining to civil liberties
1. Andhra Pradesh Court ruling : Police must file FIR after encounter – Feb 2009
2. Conviction is possible even if proof deficient: SC – March 2009
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Andhra Pradesh Court ruling : Police must file FIR after encounter
By Suresh Kumar
Over the last four decades, the Andhra Pradesh police have killed 6,000 people in fake encounters. Some 2,000 were killed in just the last decade. Yet, no policeman was prosecuted. The reason: the police never book the policemen involved in the encounter. Every time an inquiry by an executive magistrate accepted the police version that the police returned fire after being shot at. Case closed.
Not any more. In a historic judgment on February 6, on a petition filed by the Andhra Pradesh Civil Liberties Committee (APCLC), the Andhra Pradesh High Court ruled that the police must file a First Information Report (FIR) every time a death occurs at their hands, and bring the case before a judge. The court said the local police officer’s report would only be an “opinion” and not a conclusive finding. Importantly, the court ruled an executive inquiry won’t be the final word on such deaths.
This ruling is a sterling blow in favour of India’s human rights movement. It is important to quote the five Justices: G Raghuram, VVS Rao, R Subhash Reddy, Ramesh Ranganathan, and G Bhawani Prasad.
“Where a police officer causes death of a person acting or purporting to act in discharge of official duties in self-defence as the case may be, the first information relating to such circumstances shall be recorded and registered as FIR, enumerating the relevant provision of the law, and shall be investigated.
“The existence of circumstances bringing the case within any of the exceptions in IPC [Indian Penal Code], including the exercise of the right of private defence, cannot be conclusively determined during investigation. The opinion recorded by investigating officer in the final report to the magistrate is only an opinion. Such opinion shall be considered by the [judicial] magistrate in the context of record of investigation together with the material and evidence collected during the course of the investigation. The [judicial] magistrate shall critically examine the entirety of the evidence collected during investigation to ascertain whether the opinion of the IO [Investigating Officer] is borne out by the record of investigation. The [judicial] magistrate has the discretion to disregard the opinion and take cognisance of the offence.
“A magisterial inquiry [inquest] is neither a substitute nor an alternative to the obligation to record the information as FIR and to conduct investigation into the facts and circumstances of the case, if necessary to take measures for the discovery and arrest of offenders.”
APCLC filed the case before the High Court after the police killed eight people, including Communist Party of India (Maoist) leader Madhav, in a fake encounter on July 22, 2006, in the Naramalla forests of Prakasam district. Those killed included five women.
The judges, however, said it was “not necessary” to rule on our plea that the policemen who took part in the encounter be named. The Andhra Pradesh police do not mention their names even in the post-encounter reports.
This judgment will change the face of the encounter business in Andhra Pradesh. So far there has been no punishment for the police. In 1996, the National Human Rights Commission (NHRC) probed six encounter cases brought by the APCLC and ordered that FIRs be registered in five of them. At the time of the NHRC inquiry, police officers would threaten witnesses to discourage them from testifying.
In June 2006, a CrPC amendment said judicial and not executive magistrates shall probe deaths caused by the police. But police all over India refused to put this into practice. The latest judgment will hopefully trigger a nationwide movement to deter the police from killing innocent people.
Kumar is a civil rights lawyer with APCLC. This article appeared in Tehelka, Feb 2009
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Conviction is possible even if proof deficient: SC
The Statesman, March 9 2009
The Supreme Court today ruled that conviction of an accused was possible even if evidence though not sufficient was credible and cogent. “It would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient, or to be not wholly credible,” a Bench of Justices Arijit Pasayat and Mukundakam Sharma observed. They said it was the duty of the justice delivering body to separate grain from chaff where it can be separated.
The SC passed the ruling while dismissing the appeal of a person, who along with six others was convicted and sentenced to life imprisonment by a sessions court in Tamil Nadu for the murder of a woman, Prabha. The sessions court had convicted the accused on the basis of the eyewitness account of Murugammal, mother of the deceased who was hacked to death by the accused.
The accused came in appeal to the SC after Madras High Court confirmed the sentence for the seven but acquitted one of them. In the appeal before the apex court, the accused took the plea that as seven of the witnesses failed to give sufficient evidence to prove the involvement of the accused and one of the accused had been acquitted, they too were entitled to acquittal under the maxim “falsus in uno falsus in omnibus” (if part of the evidence is unbelievable then the rest should also be discarded).”
The SC, however, rejected their appeal and said the maxim had neither general acceptance nor has occupied the status of rule of law in the country.
